A man goes shopping with an AR-15 rifle on his shoulder, locking down nearby schools: Is he within his rights or causing a disturbance?
EAGLE MOUNTAIN — Police say the man wasn’t breaking the law. He just walked into a convenience store to get a drink.
But he did it with a rifle strapped to his shoulder.
A 21-year-old man walked into a Maverik gas station, 9217 Ranches Parkway in Eagle Mountain, on March 14 carrying an AR-15 along with a handgun in a holster on his side, both visible to the public.
The man did not make any threats and did not point his weapons at anyone, said Utah County Sheriff’s Sgt. Spencer Cannon. He told deputies he was “exercising his Second Amendment right and open carrying to promote gun awareness.”
Yet nearby Rockwell Charter High School and Black Ridge Elementary were temporarily locked down while deputies responded to the store to figure out what was going on.
The incident also happened on the same day that students throughout Utah and across the country held a walkout in response to the mass shooting a month earlier at Stoneman Douglas High School in Florida where 17 people were killed. Many students walked out of class to call attention to gun control.
Cannon said there was no evidence that the 21-year-old man purposely picked that day or a convenience store that was near a school to promote his constitutional rights. And “he never posed a danger or made threats to anyone,” according to the sheriff’s office.
The man was not arrested or cited. But he was asked by employees of Maverik to leave the property.
While the man’s actions were lawful, “his timing was terrible,” Cannon said.
“His manner of promoting gun safety was very ill-advised. We told him that. Once we explained to him why, he agreed with that,” the sergeant said. “There are other things people can do to promote firearm safety and firearm awareness other than the way he did it.”
The incident renews questions about the right to carry firearms openly in stores, restaurants and other public places, and whether such actions violate the statute for disorderly conduct.
Under Utah law, a person can be charged with misdemeanor disorderly conduct if that person is creating a disturbance. But whether the mere carrying of a firearm creates a public disturbance is up for debate.
Utah Shooting Sports Council Chairman Clark Aposhian said just carrying a firearm should not constitute disorderly conduct.
“Some people just have a bare fear, which is an unnatural or unusual fear. And I don’t think someone’s bare fear of firearms should be justification, which is an unnatural fear, just a bare fear of firearms in and of itself, should be justification for criminal charge of another person,” he said.
Aposhian said just as a person has the right to carry a firearm, a private business has the right not to allow people with firearms on their property.
“I think we have a good balance here in Utah of people being able to carry firearms on private property. Private property owners have the right to restrict anyone from their property for any reason,” he said. “I think it’s pretty simple. The mere carrying of a firearm, whether holstered or unholstered, without any other menacing behavior, does not rise to the level of disorderly conduct. If a property doesn’t want someone on their property for any reason, they must leave.”
But some question whether by that point, a disturbance has already been created.
Salt Lake defense attorney Greg Skordas, who is also a former prosecutor, believes a case could be made that carrying a loaded rifle into a business could cause apprehension and rise to the level of a criminal disorderly conduct charge.
But he doubts any prosecutor in Utah would file such a charge.
“I just think prosecutors and police are hesitant to take on a gun case,” Skordas said.
According to Utah law, residents can carry an unloaded firearm without a concealed weapons permit. “Unloaded,” is defined in Utah as not having a round in the “firing position” and the firearm must be at least two "mechanical actions" from shooting.
There is also a provision carved out in the disorderly conduct statute specifically for holstered or encased firearms, Skordas said. Having a holstered or encased weapon with no other additional menacing behavior is not considered disorderly conduct by law, he said.
The recent incident at the Maverik is not the first time the issue of gun rights versus creating a public disturbance has been raised in Utah.
• In 2013, a 22-year-old Ogden man carrying a rifle strapped to his back walked into a J.C. Penney store in Riverdale.
"He had the assault rifle over his shoulder,” said a woman who was standing in line behind the man. "He had a handgun on the right side of his belt along with at least one additional clip."
The man was not arrested. But a photo of him standing in line with his gun went viral.
• In 2011, a 51-year-old man was handcuffed and briefly detained on the sidewalk near Orem's University Mall while carrying a semi-automatic rifle over his shoulder and a handgun on his hip. The man was ultimately cited and convicted of a disorderly conduct infraction.
He was placed on probation for one year and ordered to surrender all of his firearms during that time, according to court documents.
The biggest challenge prosecutors face in such cases, Skordas said, is proving intent of the gun carrier and whether reckless behavior was involved.
“Did someone recklessly create a risk by causing alarm is the question the court must decide, he said. “You can argue it both ways. That’s why it’s a difficult case for prosecutors to take. Then you have to get four jurors to agree one way or the other.”
Cannon, who is an advocate of concealed carry law, said if a person wants to promote their position on gun rights, he encourages them to become a firearms instructor or make a poster and carry that openly.
“Don’t stand with a gun where there’s a school within 100 yards,” he said. “There are other things people can do to promote firearm safety and firearm awareness other than the way he did it.”